New York State Court of Claims

New York State Court of Claims

RUEMLER v. THE STATE OF NEW YORK, #2001-015-534, Claim No. 99851


Synopsis


State held not liable for injuries sustained by experienced skier in collision with other skier who exited lift line to access nearby lodge and glided into claimant's path. Court found no duty to warn skiers that others might leave lift lines and no duty to prohibit those in line from leaving it.

Case Information

UID:
2001-015-534
Claimant(s):
JOANNE RUEMLER The caption of this claim was previously amended by Order dated May 4, 1999 to delete New York State Department of Environmental Conservation as a named defendant.
Claimant short name:
RUEMLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim was previously amended by Order dated May 4, 1999 to delete New York State Department of Environmental Conservation as a named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99851
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Cook, Tucker, Netter & Cloonan, P.C.By: William N. Cloonan, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 30, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The instant claim seeks damages for personal injuries sustained in a skiing accident which occurred on March 16, 1998 at Belleayre Mountain Ski Center (Belleayre), a ski resort owned and operated by the State of New York. Claimant alleges that the State of New York was negligent in failing to properly staff the area near lift #6 and in failing to erect signs or cones directing skiers from the lift #6 loading area to the nearby mid-hill (Overlook) ski lodge, thereby permitting such skiers to move in a direction opposite to skiers such as the claimant approaching lift #6 from the Wanatuska Trail, one of the resort's upper mountain expert trails. A bifurcated trial was held, and this decision pertains solely to the question of liability.

The facts giving rise to claimant's accident are not disputed. Claimant is a self-described advanced intermediate to expert skier and amateur racer with 40 years of skiing experience. Prior to her March 16, 1998 accident, claimant had skied Belleayre and its expert trails 50 or 60 times. She held a season pass in 1998 as well as in previous years and expressed significant familiarity with lift #6 which was used by skiers at Belleayre to access the expert trails located at the top of the mountain. Claimant testified that she averaged 10-15 runs per day when skiing at Belleayre. Claimant was also aware that lift #6 and the nearby lodge separated the upper mountain's expert trails from the lower mountain's intermediate trails. She admitted that she had skied all of the upper mountain trails including Tongora, Roaring Brook, Winnisook, Belleayre Run, Wanatuska, etc. and knew that in 1998 these trails fed into the area of lift #6 and the Overlook Lodge.[1]
Her accident occurred on a Monday afternoon when there were few skiers on the mountain and she did not recall seeing any skiers in line at lift #6 as she approached it.
Immediately prior to her accident claimant skied down Wanatuska Trail, described by her as expert at the top, intermediate near the mid-point and leveling out as it approached the bottom of the trail with a drop-off near the lodge. At the bottom of Wanatuska skiers wishing to access lift #6 to return to the top of the mountain were required to turn to the right. Claimant admitted that the corral area surrounding lift #6 contained an altitude or elevation marker and a "slow" sign. Claimant alleges that immediately prior to the accident she had slowed to near walking speed and was gliding toward the lift in an area she described as fairly level. Claimant testified that after making the turn she saw another skier, William Phillips, who she alleges was approximately 10-15 feet away approaching her from the lift area. She described his movement also as gliding.

Claimant alleges that she yelled to Phillips and motioned for him to move to her left believing that she could pass around him if he moved in that direction. Phillips, she asserts, did not move left or stop but instead drifted to the right. She attempted to avoid the collision but Phillips' skis crossed over the claimant's and they collided. Claimant alleges that as they collided she reached out to Phillips to steady herself but fell onto her left hip and leg with Phillips falling on top of her, thereby sustaining the injuries for which she seeks compensation. Claimant alleges that she did not stop prior to the collision since Phillips was in the middle of the trail and would have hit her had she stopped. She testified that there was no physical reason why Phillips could not have stopped prior to the collision. She also testified that the binding on her left ski did not release at the time of the accident.

Claimant called William Phillips as a witness. Mr. Phillips on cross-examination described himself as an advanced intermediate skier who was familiar with Belleayre, having skied there many times prior to the date of the accident. He admitted that he was also familiar with lift #6 and the area surrounding it. Phillips testified that immediately prior to the accident he had come down Winnisook Trail and initially decided to take lift #6 back to the top of the mountain. He got into one of three or four lines at the lift, which he described as having a few people in each but was unsure of the number. After getting in line, he testified that he realized he was tired and decided to stop skiing and go to the lodge.

Phillips testified that a skier exiting a lift line to go to the lodge had two options, each of which involved going in the opposite direction of skiers approaching the lift. One route would have taken him in the opposite direction of skiers approaching from Winnisook Trail and Roaring Brook Trail whereas the route he elected to take placed him in opposition to skiers approaching lift #6 from Belleayre Trail and Wanatuska Trail, the latter of these being the claimant's approach to the lift immediately prior to this accident. The witness testified that there were no signs or warnings to prohibit skiers from leaving a lift line at lift #6 or directing skiers as to a proper or safe approach to the Overlook Lodge. The witness testified that other lifts at Belleayre were so configured that one could leave a lift line without encountering oncoming ski traffic. He testified that it was also possible for skiers to pass through the area around lift #6 without stopping to access the mountain's lower trails. He described weather conditions at the time of the accident as sunny but cold, and the resort as less crowded than on a weekend although busy for a Monday.

Phillips described the accident as follows: He left the lift line at a slow speed and first saw claimant when she was 10 yards[2]
away. He realized that they were on a collision course and alleged that he moved right toward a snow fence to allow claimant to pass him on the inside. He testified that when he moved right he saw claimant alter her course in the same direction. He alleges that he then attempted to move left, claimant moved in same direction, followed by an opposite maneuver on the part of each skier, resulting in a collision. The witness indicated that at the time of the collision both were travelling very slowly and had almost come to a full stop on the surface, which he described as level with a slight downhill slope.
On cross-examination Phillips testified that he thought he could maneuver around the claimant and that he could not have stopped in order to avoid the collision. On further questioning he stated that he knew of no reason why the claimant could not have stopped her progress towards him and thereby avoided the collision.

Claimant requested the introduction into evidence of a transcript of an examination before trial of Elizabeth Brittain, a ski patroller at Belleayre in 1998 in which Ms. Brittain testified concerning her duties as a ski patroller, which included the placement of signs such as the "slow" sign posted on the approach to the lift #6 corral. She further testified that additional signs would be posted at the direction of the Ski Patrol Director (Joseph Strauss) and could be placed by a ski patroller or by a lift attendant. The witness testified that there was a sign protocol during the 1997-1998 season which established procedures for when and where to post signs. Brittain testified that there was no sign directing traffic to the lodge from lift #6. Brittain also testified regarding the placement of cones in the area near the entrance to lift #6 to demark lanes for skiers waiting to access the lift loading area. According to Ms. Brittain, lift #6 could be entered from either the east side or west side and it was the responsibility of lift attendants to place the cones outside the entrance to lift #6 when conditions warranted. Brittain also testified that caution or "slow" signs tell people entering a congested area to slow down and use caution.

The next witness to be called by claimant was Richard Clark, Superintendent of Belleayre Ski Center in 1998 and continuing to the present. Clark indicated that the Ski Patrol Policy and Procedure Manual (Claimant's Exhibit 11) did not require the placement of cones in lift loading areas or address the issue of skiers avoiding oncoming skiers in lift areas.

Claimant's final witness was Philip Davenport, a certified ski instructor, certified ski coach, and former owner and operator of Highmount Ski Center which is or was located on the same mountain as Belleayre. Davenport testified that he has known the claimant for years and that she skied Highmount when he was the owner.

The witness in his direct testimony alleged that in configuring a lift area a ski area operator should consider the possibility that some people will decide to leave the lift area and should be provided a safe way to do so. He alleged, without citing specific examples to support his testimony, that this was the general standard in the industry as well as a matter of common sense. He testified that arrow signs are available to direct people within a lift area. He did not recall any signs at Belleayre directing skiers to use a particular route to get to the lodge. Davenport offered the following opinions: Defendant's failure to provide a safe lane around lift #6 violated industry standards; the lack of an attendant managing lines of skiers awaiting access to lift #6 violated general ski industry standards; the lack of a sign directing skiers from the Winnisook side to approach the lodge by going right around a pine tree shown in various photographic exhibits and the lack of a sign telling persons going left to the lift that they were committed to the use of the lift and could not leave violated industry standards.

On cross-examination Davenport acknowledged that he was the former director of racing at Belleayre, a position he occupied for 10 years and from which he was asked to resign but refused to do so. He admitted that he was not thereafter asked to return as an employee of Belleayre and that when he left Belleayre he told personnel there "[y]ou haven't heard the last of me yet." Davenport stated that he had never before testified as an expert witness at trial and alleged that he was not being paid to testify in this case. He testified further that if, in fact, there were only 250 people at Belleayre on the date of the accident, that that would be a very small crowd for Belleayre and that it would not be necessary to have a person outside at a lift line under such circumstances. He also testified that cones would be used to establish lift lines and a free area outside the lines for skiers to move through. The witness admitted that he had used lift #6 at Belleayre many times but had never complained to the facility's superintendent that the configuration of the lift was dangerous. On redirect examination, however, Davenport stated that Belleayre had no safety director in 1998 and that he was never informed of how to make a complaint while at Belleayre.

Claimant rested at the conclusion of Davenport's testimony. The defendant's motion to dismiss the claim for failure to make out a prima facie
case was denied. Motions made by each party for a directed verdict were also denied.
The defendant offered the deposition testimony of Jean Kanor, a disinterested eyewitness, which was marked and received without objection as Exhibit K. Kanor's testimony basically retells the same story of the accident as related by claimant and by William Phillips. Ms. Kanor testified that, when she first observed them, the claimant and Mr. Phillips were approximately six feet apart and approaching one another "very, very slowly", appearing to Ms. Kanor as if they were about to embrace. Kanor further testified:
I saw them proceeding towards each other very slowly and at one point I could not believe it but they were – they crashed into each other. It looked like one ski might have gone over the other pair of skis and they – the man grabbed the woman to stop, you know, stop each other, sort of grabbed by the elbows or by her forearms, and I remember him saying, "I'm sorry, I'm sorry," or they both said apologetic kinds of things. Then as he was holding her he sort of tipped over onto her, as I remember, probably her right side. She was falling and she was – he was trying to keep her from falling over. She fell and then he fell on top of her. Then all I heard was her screaming. It seemed like she was screaming in pain and he was trying to help her.
The defendant called Elizabeth Brittain,[3]
the current Ski Patrol Director at Belleayre who testified that she was a ski patroller on duty on March 16, 1998 when the claimant's accident occurred. She testified that she had interviewed witnesses and prepared an accident report. Ms. Brittain recalled that attendance was low that day and that there were no lift lines all day at lift #6, which she passed by approximately once each hour. The witness also testified that after her arrival at the accident scene she checked the claimant's bindings and found that claimant's left binding had not released. She stated that a binding should release to prevent injury and that bindings should be checked annually. Brittain stated that she took photographs of the area the day after the accident (Exhibits A through I ) and that the scenes depicted therein were the same as they appeared on the date of the accident. The witness testified that cones were not used to establish lift lines on weekdays since there were never lift lines on those days. She described the area of the accident as a flat and level loading area. Brittain testified that she had worked as a ski patroller at Belleayre for 16 years and was not aware of any collisions between skiers in the area where this accident occurred.
On cross-examination Brittain admitted that she had investigated collisions at lift lines before this incident but that it was unusual for collisions to involve skiers going in opposite directions. The witness testified that on weekends cones were used to guide people using the lift and that she had not known them to be used to cordon off through traffic around lift lines at Belleayre, as recommended by claimant's expert witness.

Richard Clark, called earlier by the claimant, was called to testify on the defendant's behalf. He testified regarding the replacement of lift #6 in 1999 as part of Belleayre's modernization program. He also testified that computer records demonstrated that attendance at Belleayre on March 16, 1998 totaled 245 skiers. Clark offered testimony regarding the use of cones in the lift area which he said were generally used to delineate lanes for skiers using the lift and that they were not generally used as a warning device. Clark disagreed with the suggestion made by claimant's expert (Davenport) regarding the placement of cones outside the lift buildings and the use of a snow fence to direct skiers to the lodge, saying that such placement would interfere with skiers continuing past lift #6 to the lower part of the mountain. The witness testified that he had known Philip Davenport for more than 20 years and stated that in his opinion Mr. Davenport's management abilities were "not great."

The defendant rested after requesting that the Court take judicial notice of New York State General Obligations Law § 18-101 and § 18-105(4) and (5).

In rebuttal, claimant's attorney read from portions of Jean Kanor's examination before trial transcript which had previously been marked and received in evidence as defendant's Exhibit K. Defendant thereafter renewed its motion to dismiss the claim and for a directed verdict, which the Court denied.

It is fundamental that to recover in a negligence action it is necessary to establish that the defendant owed claimant a duty to use reasonable care, and that defendant breached that duty (
see, Turcotte v Fell, 68 NY2d 432, 437). The determination of the existence of a duty and concomitant scope of that duty involve not only a consideration of the wrongfulness of the defendant's action or inaction, but also requires an examination of the claimant's reasonable expectations of the care owed to claimant by others (see, Turcotte v Fell, supra).
Based upon the proof outlined above claimant seeks to hold the defendant liable as owner and operator of the ski resort for its failure to erect signs or other safety devices or to post attendants to prevent skiers from leaving a lift loading area in such a manner that their paths would cross those of skiers approaching the lift area. In
Morgan v State of New York, 90 NY2d 471, the Court of Appeals held that a participant in a sport or recreational activity "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." In particular, an individual participating in downhill skiing assumes the risk of injury caused by other persons using the facility, which has been determined to be a danger usual or inherent in that activity (Duncan v Kelly, 249 AD2d 802; Martin v Luther, 227 AD2d 859; Woods v New York State Olympic Regional Dev. Auth., 169 Misc 2d 8; General Obligations Law § 18-101[1]). A landowner or operator of a recreational area will be relieved of liability for risks inherent in the sport "when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Morgan, supra, at 484).
In assessing the assumption of risk posed by an alleged dangerous condition at a ski resort, the Appellate Division, Third Department in
Simoneau v State of New York, 248 AD2d 865, 866 recently stated:
. . . as the Court of Appeals has recently reaffirmed, in assessing whether one injured in the course of participating in a sporting or recreational event had assumed the risk posed by an assertedly dangerous condition, the critical inquiry is whether that condition is "unique", constituting a hazard "'over and above the usual dangers that are inherent in the sport'" (Morgan v State of New York, 90 NY2d 471, 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970). While recovery may still be had for damages resulting from exposure to "unreasonably increased risks" (id., at 485; see, Owen v R.J.S. Safety Equip., supra, at 970), the mere fact that a defendant "could feasibly have provided safer conditions" (Verro v New York Racing Assn., 142 AD2d 396, 400, lv denied 74 NY2d 611; see, Nagawiecki v State of New York, 150 AD2d 147, 150) is beside the point, where, as here, the risk is open and obvious to the participant, taking into consideration his or her level of experience and expertise (see, Morgan v State of New York, supra, at 485-486; see, Maddox v City of New York, 66 NY2d 270, 278), and is an intrinsic part of the sport (see, Morgan v State of New York, supra, at 484).
Applying this standard to the proof adduced at trial can only lead to the conclusion that as an advanced intermediate to expert skier with 40 years of experience in the sport, claimant was undoubtedly aware of the risk of personal injury caused by other persons using the facilities, particularly in areas of congestion such as a lift loading area, and was aware of her own obligation "to remain in constant control of speed and course at all times while skiing so as to avoid contact with . . . other skiers" (General Obligations Law § 18-105[4]). The same may be said for the experienced, advanced intermediate skier with whom the claimant collided. Both of these skiers testified as to their familiarity with Belleayre and with lift #6 and the fact that it served the upper mountain trails which they had skied on this and other occasions. Based upon their prior skiing experience at Belleayre they must also be charged with the knowledge of the location of the nearby Overlook Lodge relative to lift #6 and the manner in which skiers could be expected to access the lodge from either the upper mountain or from the loading area of lift #6. There is nothing in this record which suggests to this Court that the defendant by its action or inaction caused a condition which was "unique" or which made this lift loading area less safe than it appeared to be. As a result, no further duty of care was owed to the claimant (see, Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558, 559). The defendant was not required to warn the claimant of the danger inherent in lift loading areas which are open and obvious, especially to skiers of claimant's longstanding experience and expertise.
Moreover, claimant offered no proof at trial other than the unsupported, conclusory assertions of claimant's expert from which the Court could determine that defendant owed a duty to users of lift #6 to post signs prohibiting skiers from leaving the lift loading area to go to the lodge. William Phillips testified that after he arrived at the lift he realized that he was fatigued and that he should not return to the top of the mountain. Had the defendant prohibited Mr. Phillips or like skiers from leaving the lift area under such circumstances and forced him to return to the top of the mountain, additional skiers might have been placed at risk of injury. This Court refuses to find such a duty and is not persuaded that the absence of an additional lift attendant, which claimant's expert admitted was unnecessary on such a lightly attended weekday, or the absence of traffic cones used to demarcate lift loading lines were proximate causes of the claimant's unfortunate injuries. Absent such proof, claimant has not established that the defendant is liable for her injuries and recovery must be denied (
see, Kaufman v Hunter Mtn. Ski Bowl, 240 AD2d 371; see also, Atwell v State of New York, 229 AD2d 849).
Accordingly, the Court hereby vacates its trial decision which denied the defendant's motion to dismiss the claim for the failure of claimant to establish a prima facie case of negligence and upon the vacatur grants the motion for the reasons set forth above.

Let judgment be entered accordingly.


May 30, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]According to Richard Clark, the Superintendent of Belleayre, subsequent to the 1997-1998 ski season at issue here Belleayre installed a new quad chair lift and eliminated lift #6 during a 1999 modernization program.
[2]This distance being considerably greater than the 10-15 feet described by the claimant.
[3]Claimant had used a transcript of this witness's examination before trial testimony as part of her direct case.